Change of Custody with Unstable Ex ?

Dear Esq.,

I have been divorced since 2003 and previous to that separated since 2002. I went to court to get joint physical and legal custody since I thought it would be best for the children and the judge granted me this. I moved on with my life and married to a wonderful lady, but my ex is jealous of the fact that I have moved on and is making things very difficult for me, my wife, and my two daughters ages 3 and 6. My ex is on Prozac and takes a very high dose on a daily basis to treat her manic depression.

A few months ago my ex tried getting into an argument with me, but I did not give her the pleasure.I asked my ex if she would like to talk as grown ups out by her car and not in front of my now wife’s two children then we could talk. My ex continued to use profanities in front of the children so I told my ex I was going inside. My ex denied me the entrance into my home by standing in front of my doorway, so I called 911. So as I am talking to the dispatch officer, my ex decides to leave. My ex is swearing at me and putting her face close to mine yelling and screaming, and then finally getting in her car and taking off. My three year old was in preschool at the time and my 6 year old in first grade. It was my day off with my kids to have them from 8am – 6pm. To be vindictive my ex went and grabbed both kids out of school and took them.I reported my ex’s actions to the police, and my lawyer so I could get it on file.

That same day my ex called me at least seven times on my cell phone and left different disturbing messages by using my children to get to me. Around forty minutes of recorded messages that I gave to my lawyer to keep on file.

On April 4th was the time change to set our clocks one hour ahead. My wife and I had taken all the kids hiking up a canyon and decided to have a lunch up there and be back around 5:30pm so we would have time to give the girls a bath before they go back to mom’s. As we are headed back down the canyon road in our car my cell phone had gained reception and I saw that I had a message, it was from the girl’s mother. I checked it and my ex had said that it was six o’clock to give her a call. Well according to my car clock it was 5:25pm. So we arrived at our house around 5:30. As I was outside washing the kids; shoes off with the water hose from our muddy hike my ex pulls up and starts to yell and scream and telling me that I should be more responsible and I should apologize to her for having them there late. So I walked away and started to finish washing the shoes, my ex yells at me “get back here.” My ex gets out of her car and gets behind me and starts to tell me that I should apologize to her.

I told my ex that I was not going to apologize to her and she freaked out. My ex asked me where the kids were, I told my ex they are inside taking a bath. My ex goes into our house passed my wife down the hall wall into the bathroom and yells at the kids “Let’s go! Now! Let’s go!” During this time I am asking my wife where the camera is. She points at the entertainment center. My ex grabs two towels out of the pantry, grabs my six year old out of the bathtub puts a towel around her, takes my three year old and wraps a towel around her and jets down the hallway. As my ex is coming down the hallway into the living room, I snap a picture of my ex trying to cover her face holding my youngest child while my oldest child follows my ex out to her car. I called 911, and filed a report to press charges of her trespassing. My ex’s court date is this month. Now my ex swears that she will do, and try anything in her power to find a way for her to press charges against me.

My ex does not bath them or comb my girls’ hair. My oldest has told me that they have to be careful what they eat because they have found maggots in my ex’s refrigerator, and they don’t get baths even if my oldest asks for one.

My two questions to you is: Do you think that as of right now I have a good chance to win custody of my children?

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Do you think I should be patient and get more audio, video, and visual evidence showing her nature?

Sincerely, Frustrated

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Dear Frustrated,

You ask a two-part question: first, do you have a chance to win a change of custody right now, and second, should you wait and get more evidence first?

Of course, these questions are related, and to answer them completely one would need to know what state you are in, and to be familiar with the family law system and laws in that state. For this reason, you should not only talk very seriously with your own attorney, but you should get a second opinion from another attorney in your state.

Still, that said, some general answers may be helpful to you.

You are fortunate in that you are starting from the fairly neutral position of already having joint physical custody, a position which most fathers in your situation do not have. Given that this is the case, you may find that it is much easier for you to prevail by asking not for a change in custody but rather simply for more time with the children. This will give you the advantage of not seeming like you are “trying to take the children away from their mother”, as well as being less threatening to your ex, which means that she may be less apt to fight it tooth and nail. It really doesn’t matter what it is called on paper nearly so much as what time you actually have the children, and after you have had them an increased amount of time for several months, then it will be much easier for you to get the custody order changed to reflect the reality. It may also be useful to note that it is predictable that your ex would start acting out more once you remarried. If you and your new wife plan children of your own, you should expect it to get worse upon the arrival of a new baby, as well.

If you are presently required to pay child support, you should also consider offering up front to keep paying the current rate of support even if you have the children with you more. This serves the dual purpose of removing a strong motivator for your ex to fight your request, as well as showing the Court that your request is motivated entirely by the best interests of your children, and that you are not in any way looking to stick it to your ex.

With respect to whether you should strive to gather more evidence (audio, video, or otherwise), it is always helpful to have concrete evidence, but it is critical that you fully understand the sort of evidence in which the Court is interested, and that in which they are not (especially as trying to convince the Court that something is important if they don’t feel that it is can backfire). This too is an area where you need to speak with a local attorney, but you absolutely must speak with one who has experience in advocating for fathers.

With regards to specifics: in some states recorded conversations of any type are not admissible without the express agreement of all participants to the conversation; in other states they are admissible so long as all parties involved knew that the conversation was being recorded; and in yet other states only one party is required to be aware of the recording. In California, for example, telephone messages are admissible because by their very nature the person who left the message knew that they were being recorded.

One very successful practice is to transcribe all telephone messages you wish to bring to the Court’s attention, and provide them as part of an affidavit, with a note saying that the original recordings are available to the Court upon request.

It is also very helpful in this situation to have a home answering machine as well as a celphone, and to screen all of your calls, letting your ex leave messages as much as possible, rather than talking with her in person. Not only will this help to reduce your own stress, but it is likely to encourage her to leave more, and more useful, telephone messages.